Citation Nr: 9912323
Decision Date: 05/04/99 Archive Date: 05/12/99
DOCKET NO. 97-07 455 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Boston,
Massachusetts
THE ISSUES
1. Entitlement to service connection for a psychiatric
disorder.
2. Entitlement to a compensable (increased) evaluation for
residuals of basal cell carcinoma.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. S. Kelly, Counsel
INTRODUCTION
The veteran had over 21 years of active military service when
he retired in April 1990.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a January 1996 rating determination of
the Boston Department of Veterans Affairs (VA) Regional
Office (RO).
REMAND
With regard to the veteran's claim for a psychiatric
disorder, the Board notes that a review of the veteran's
service medical records demonstrates that he was seen with
complaints of a nervous condition in 1972. It was the
examiner's assessment that the veteran had situational
anxiety. In November 1988, the veteran was seen with
complaints of awakening at night. A diagnosis of possible
anxiety reaction R/O sleep anxiety was rendered at that time.
In December 1991, the veteran suffered a panic attack. In
January 1992, the veteran was treated for anxiety and panic
attacks. Subsequent diagnoses have included panic disorder
with agoraphobia and recurrent major depression. At the time
of his March 1999 personal hearing before the undersigned
Board member, the veteran expressed his belief that his
anxiety was related to his service-connected basal cell
carcinoma.
The Board observes that service connection may be granted for
a disability that is proximately due to or the result of a
service-connected disease or injury. 38 C.F.R. § 3.310(a)
(1998). The United States Court of Appeals for Veterans
Claims (Court) has held that service connection may be
granted for a disability that is aggravated by a service-
connected disability and that compensation may be paid for
any additional impairment resulting from a service-connected
disorder. Allen v. Brown, 7 Vet.App. 439 (1995). The Board
is of the opinion that the issue of service connection for a
psychiatric disorder as secondary to the veteran's service-
connected basal carcinoma residuals should be addressed.
VA regulations provide that where "diagnosis is not
supported by the findings on the examination report or if the
report does not contain sufficient detail, it is incumbent
upon the rating board to return the report as inadequate for
evaluation purposes." 38 C.F.R. § 4.2 (1998); see 38 C.F.R.
§ 19.9 (1998). Where the Board makes a decision based on an
examination report that does not contain sufficient detail,
remand is required "for compliance with the duty to assist
by conducting a thorough and contemporaneous medical
examination." Goss v. Brown, 9 Vet. App. 109, 114 (1996);
Stanton v. Brown, 5 Vet. App. 563, 569 (1993).
With regard to the veteran's claim for an increased
evaluation for scar residuals of basal cell carcinoma, the
Board notes that the veteran has reported having had several
surgeries for basal cell carcinoma subsequent to the
performance of his January 1995 VA examination. In
accordance with 38 C.F.R. § 3.327, reexaminations will be
requested whenever the VA determines there is a need to
verify the current severity of a disability. VA is obliged
to afford veteran's contemporaneous examinations where there
is evidence of an increase in the severity of the disability.
VAOPGCPREC 11-95 (1995); 60 Fed. Reg. 43186 (1995). The
veteran is competent to provide an opinion that his
disability has worsened. Proscelle v. Derwinski, 2 Vet. App.
629 (1992).
The Board also notes that at the time of his March 1999
hearing, the veteran reported having recently been treated by
a dermatologist at the Portsmouth Naval Hospital and
indicated that these treatment records had not yet been
associated with the claims folder. The VA's duty to assist
also includes obtaining medical records where indicated by
the facts and circumstances of the case. Littke v.
Derwinski, 1 Vet.App. 90 (1990).
To ensure that VA has met its duty to assist the claimant in
developing the facts pertinent to the claim and to ensure
full compliance with due process requirements, the case is
REMANDED to the RO for the following development:
1. The RO should obtain the names and
addresses of all medical care providers
who have treated the veteran for any
psychiatric disorder subsequent to his
retirement from service and for any basal
cell carcinoma residuals since January
1995. After securing the necessary
release(s), the RO should obtain legible
copies of all records not already
contained in the claims folder, to
include any identified VA clinic or
medical center. Specific emphasis should
be placed upon obtaining the records of
the physician who recently treated the
veteran at the Portsmouth Naval Hospital.
Once obtained, all records should be
associated with the claims folder.
2. The RO should schedule the veteran
for a VA psychiatric examination to
determine the nature and etiology of any
current psychiatric disorder. The
examiner should review the claims folder
including a copy of this remand, prior to
completing the examination report. All
necessary tests or studies should be
performed and all findings must be
reported in detail. The examiner is
requested to identify each psychiatric
disorder that is present. In conjunction
with a review of the veteran's claims
file, it is requested that the examiner
render an opinion, with complete
rationale, as to whether it is as least
as likely as not that any currently
diagnosed psychiatric disorder is related
to complaints and/or any findings noted
in service.
With regard to any diagnosed psychiatric
disorder, the examiner is also requested
to express an opinion, with complete
rationale, whether it is as least as
likely as not that any diagnosed
psychiatric disorder is directly
secondary to or chronically worsened by
the veteran's service-connected scar
residuals of basal cell carcinoma.
3. The veteran should also be afforded a
VA dermatological examination in order to
ascertain the current severity of his
service-connected scar residuals of basal
carcinoma. All indicated testing should
be done in this regard and the claims
folder should be made available to the
examiner for review. In connection with
this evaluation, the examiner should
report detailed findings in regard to the
skin manifestations and should comment on
whether the veteran is experiencing
exfoliation, exudation or itching,
extensive lesions or marked disfigurement
due to the service-connected basal
carcinoma residuals. Regarding the
residual scars, the examiner should
report whether the scars are tender and
painful on objective demonstration and
whether they limit the function of the
part affected. Complete rationale for
all opinions expressed must be provided.
4. Thereafter, the RO should review the
claims folder to ensure that all of the
foregoing development has been completed.
In particular, the RO should review the
requested examination report and required
opinions to ensure that they are
responsive to and in complete compliance
with the directives of this remand and if
they are not, the RO should implement
corrective procedures.
5. After undertaking any development
deemed appropriate in addition to that
outlined above, the RO should
readjudicate the claim of service
connection for a psychiatric disorder,
with the review considering Allen v.
Brown, 7 Vet. App. 439 (1995) and the
issue of an increased evaluation for
residuals of basal cell carcinoma, with
consideration of 38 C.F.R. § 3.312(b)(1).
If the benefit requested on appeal is not granted to the
appellant's satisfaction, the RO should issue a supplemental
statement of the case. A reasonable period of time for a
response should be provided. Thereafter, the case should be
returned to the Board for final appellate review, if
otherwise in order.
By this remand, the Board intimates no opinion as to any
final outcome warranted. No action is required of the
appellant until he is notified by the RO.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims (known as the United States Court
of Veterans Appeals prior to March 1, 1999) for additional
development or other appropriate action must be handled in an
expeditious manner. See The Veterans' Benefits Improvements
Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658
(1994), 38 U.S.C.A. § 5101 (West Supp. 1998) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
ROBERT E. SULLIVAN
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims (known as the United
States Court of Veterans Appeals prior to March 1, 1999).
This remand is in the nature of a preliminary order and does
not constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1998).